BEFORE THE Department of TRANSPORTATION
OF THE STATE OF MONTANA
In the matter of the amendment of 18.8.101, 18.8.207, 18.8.306, 18.8.411, 18.8.411" target="RefRule">18.8.412, 18.8.413, 18.8.414, 18.8.415, 18.8.420, 18.8.422, 18.8.426, 18.8.508, 18.8.509, 18.8.510A, 18.8.510B, 18.8.511A, 18.8.512, 18.8.517, 18.8.518, 18.8.519, 18.8.602, 18.8.604, 18.8.1501, 18.8.1502, 18.8.1503, and 18.8.1505, pertaining to motor carrier services
NOTICE OF AMENDMENT
TO: All Concerned Persons
1. On April 26, 2012 the Department of Transportation published MAR Notice No. 18-135 pertaining to the proposed amendment of the above-stated rules at page 819 of the 2012 Montana Administrative Register, Issue Number 8.
2. The department has amended the following rules as proposed: ARM 18.8.101, 18.8.207, 18.8.306, 18.8.411, 18.8.412, 18.8.413, 18.8.414, 18.8.415, 18.8.420, 18.8.422, 18.8.426, 18.8.509, 18.8.510A, 18.8.510B, 18.8.511A, 18.8.512, 18.8.517, 18.8.518, 18.8.519, 18.8.602, 18.8.1501, 18.8.1502, 18.8.1503, and 18.8.1505.
3. The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
18.8.604 VEHICLE WEIGHT ANALYSIS AND ROUTE ANALYSIS
(1) through (1)(d) remain as proposed.
(2) Upon request, a route analysis shall be conducted by the department when necessary
as a one-time-only approval, and issued as an annual approval, when submitted for a specific vehicle configuration, axle spacing, axle weights, gross weight, and route of travel to determine the conditions of travel for the movement of overweight vehicles or loads upon a specific route.
(a) and (b) remain as proposed.
AUTH: 61-10-155, MCA
IMP: 61-10-121, 61-10-125, MCA
4. The department has amended the following rule to correct a deficiency in citation of authority, which was inadvertently omitted from the proposed rule notice, new matter underlined, deleted matter interlined:
18.8.508 SELF-ISSUING PERMIT (1) through (3) remain the same.
(History: This rule is advisory only but may be a correct interpretation of the law. IMPLIED, 61-10-121, 61-10-155, MCA;
AUTH: 61-10-155, MCA
IMP: 61-10-101, 61-10-102, 61-10-103, 61-10-104, 61-10-106, 61-10-107, 61-10-108, 61-10-109, 61-10-110, 61-10-113, 61-10-121, 61-10-122, 61-10-123, 61-10-124, 61-10-125, 61-10-126, 61-10-127, 61-10-128, 61-10-129, 61-10-130, 61-10-141, 61-10-142, 61-10-143, 61-10-144, 61-10-145, 61-10-146, 61-10-147, 61-10-148, MCA
REASON: The proposed amendment is necessary to delete a reference to the advisory nature of the rule. The department has full rulemaking authority under 61-10-155, MCA, to adopt rules to implement Title 61, chapter 10, MCA, thus the rule is not adopted under "implied" rulemaking authority, and the "advisory" designation is not appropriate under 2-4-308, MCA. This correction to the citation was inadvertently omitted from the proposed rule notice published as MAR Notice No. 18-135, but is being corrected on the adoption notice.
5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: One comment was received regarding ARM 18.8.101(3), definition of "commercial use." The comment asked whether a passenger vehicle or pickup truck owned by a business would be considered a commercial vehicle in its everyday use or only if it is used as described under ARM 18.8.101(2) under the definition of "commercial motor vehicle."
RESPONSE #1: The department notes the definition of "commercial use" in (2) already states that a vehicle registered to a business and used in commerce would meet the definition of "commercial use." However, the vehicle may or may not be required to follow commercial motor vehicle safety rules unless it also meets the definitions found in ARM 18.8.101(2) and 18.8.1501(2).
COMMENT #2: Two comments were received regarding ARM 18.8.510A on restrictions for flag vehicles. The comments stated the rule should not use 14,000 lbs. gvw, as that is too restrictive, and the rule should look at vehicles up to 26,000 lbs. gvw with two axles and some size restrictions, or as approved by the department. The comment stated in many cases if a "shop truck" could be used to flag a vehicle it would save fuel and valuable time and avoid a situation where a disabled vehicle may sit in a lane of traffic for hours until this type of vehicle can be called to help repair the vehicle. The comments also stated it was understood a two-ton designation for a single axle truck is no longer standard industry term, nor vehicle manufacturer's designation language, however, the comment understood the existing language to allow a vehicle with two axles to be allowed to be used as an escort vehicle. The comment stated often times a service truck, which could be a two-axle truck that could legally be licensed for more than 14,000 lbs., is used as an escort vehicle for larger oversize moves. The comment was unsure if the proposed change to a 10,000 to 14,000 lb. gvw will limit the size of the vehicle. The comment suggested the department continue to allow the use of a standard two-axle vehicle as an escort vehicle.
RESPONSE #2: The department notes that service trucks which exceed the 14,000 lbs. gvw limit are not appropriate as flag vehicles in situations where flag vehicles are required. The department further notes that 26,000 lbs. gvw vehicles, as suggested by the comment, are too big, such that the vehicle would become another truck operating on the highway. The use of a 26,000 lb. gvw vehicle would affect additional rules, including required lighting on the truck for added visibility for the traveling public. The department notes its proposed rule language on "10,000 lbs. to 14,000 lbs." gvw follows the American Association of State Highway and Transportation Officials (AASHTO) recommendations, based on nationwide research which state: "the pilot vehicle shall not exceed a maximum gvw rating of 14,000 lbs." The department has also researched regulations in surrounding states to maintain consistency with flag vehicle requirements in other states such as WA (vehicle shall not exceed a maximum gvw rating of 14,000 lbs.), UT (gvw shall be a maximum of 12,000 lbs.) and ND (pilot car vehicle must be a passenger vehicle or a two-axle truck only.)
COMMENT #3: One comment was received regarding ARM 18.8.517 and 18.8.518 on special vehicle combinations. The comment stated they agreed with the intent of the rules, as state permits are no longer a necessity as these drivers must be now certified to drive LCVs under federal regulations and to carry this permit in only one state is burdensome to many companies who do business in surrounding states and whose drivers may deliver in Montana.
RESPONSE #3: The department acknowledges receipt of the comment in support of the proposed rule changes.
COMMENT #4: Two comments were received regarding ARM 18.8.604 on vehicle weight analysis and route analysis. The commenters stated they were concerned with language in (2) on "one-time only approval" as this language may be construed to prevent the return of the same load to origin without applying for and receiving a new analysis. The commenters stated that many times these loads go from point A to point B and then may need to return to point A, therefore it should be clear that this can be done under the same permit and analysis as the original trip. The commenters stated delays in this could be a considerable expense to many companies where time is of the essence. The comments further stated that once a vehicle configuration is analyzed along with a given route segment, the analysis can be applied to additional permits for the same vehicle over the same route. The commenters stated the proposed rule language could be interpreted to mean that each move may be subjected to a route analysis, even if such analysis has already been done for the same route and vehicle. The commenters felt it was their understanding that the department would allow the route analysis to be used in such a manner and suggested the language be clarified to remove any doubt.
RESPONSE #4: The department agrees with the comment and will clarify the rule language as shown above, to replace the existing language "one-time-only" with "annual approval" to reflect the actual practice.
COMMENT #5: One comment was received stating the rule should have increased the height on annual permits to 16 feet 11 inches.
RESPONSE #5: The department acknowledges receipt of this comment, however notes that no height change was proposed in this Proposed Rule Notice, therefore it cannot make this type of rule change with this adoption notice. However, the department is evaluating this and may consider increasing the height on the annual permit with future proposed rule changes.
COMMENT #6: One comment was received stating tow truck drivers weren't given sufficient notification of the proposed rule changes, but would like to have input on rules governing the towing industry. The comment stated tow truck drivers need more time to think about what changes they need and how to write them up to best serve the towing industry and the public.
RESPONSE #6: The department notes that no general towing rules were proposed for change with this Proposed Rule Notice. Therefore, the department cannot now make any type of towing rule changes with this adoption notice. Instead, the department will consider the towing industry comments received and based on the concerns raised, will initiate a review of towing rules for a future proposed rule amendment notice. All interested parties will continue to be given ample opportunity for public comment on any future proposed rule changes.
COMMENT #7: One comment was received regarding ARM 18.8.519 on wreckers or tow vehicle requirements. The comment suggested language in (1)(b) regarding separation of combination vehicles if creating a threat to life or property.
RESPONSE #7: See response to Comment #6 above.
COMMENT #8: One comment was received regarding ARM 18.8.519 on wreckers or tow vehicle requirements. The comment suggested language in (1)(c) on special combination and nondevisable loads and point of disablement.
RESPONSE #8: See response to Comment #6 above.
COMMENT #9: One comment was received regarding ARM 18.8.519 on wreckers or tow vehicle requirements. The comment suggested language on a new subsection regarding exemptions for tow truck operation for restricted hours and weather conditions, and towing from either the front or rear of a motor vehicle.
RESPONSE #9: See response to Comment #6 above.
/s/ Carol Grell Morris /s/ Timothy W. Reardon
Carol Grell Morris Timothy W. Reardon
Rule Reviewer Director
Department of Transportation
Certified to the Secretary of State July 2, 2012.